Education, Training and Experience: What Counts and What Doesn't

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Complex rules control the PERM minimum qualifications an employer may require. Listing many minimum requirements often leads to difficult audits.

 

For I-140 petitions, a worker may not combine degrees, certificates and experience to meet the minimum qualifications of the job.  If you have a three year bachelor's degree from a foreign country and significant experience, or a post graduate diploma, you still don't have the equivalent of a bachelor's degree for employment-based permanent immigration.  8 CFR 204.5(l)(3)(ii)(c).

The petitioner is required by law to file with the I-140 petition proof that the worker meets the minimum qualifications for the job.  8 CFR 204.5(l)(3)(2)(B).

PERM Minimum Qualifications and Business Necessity

The Department of Labor maintains a list of minimum qualifications for various types of jobs.  This list results from Department of Labor's analysis of employer surveys and other information.  Some of the results may surprise those with industry experience.  For example, in Department of Labor's view, a Senior Software Engineer is a job that does not normally require more than a bachelor's degree and two years of experience.

The Board of Alien Labor Certification Appeals (BALCA) held in a decision issued in April 2010 that an employer's minimum qualifications of a bachelor's degree and three years of experience for a Senior Software Engineer job exceeded the industry standard as tabulated by Department of Labor and upheld the Certifying Officer's decision to deny the application.  In the Matter of: Wissen Inc., 2009-PER-00405 (BALCA 2010).

An employer may have minimum qualifications that exceed the "normal" minimum qualifications, but must demonstrate business necessity.  The case that set out the business necessity rule is Matter of Information Industries, 1988-INA-82 (Feb. 8, 1989)(en banc)(rule also appears at 20 CFR 656.17(h)(1).  To demonstrate business necessity, an employer must prove:

  1. The job duties and requirements are reasonably related to the occupation in the context of the employer's business, and
  2. The duties are essential to perform the job in a reasonable manner

An employer proves business necessity by explaining specifically why a person without the education, experience or skills required could not perform the job in a minimally adequate manner.  To do that, the employer has to discuss the job's duties, the education, experience, or skills that exceed the DOL "normal" level, and why a person without that extra education, experience or skill could not perform the job.  But it gets even trickier.  The rules provide that if a US worker could acquire any required education, experience or skill during a period of reasonable on-the-job training, the US worker is qualified for the job. The corrolary is that an employer cannot prove business necessity for a specific skill if a worker could acquire the skill with a reasonable period of on-th-job training.

In Wissen, it did not help that the employer's attorney failed to specifically describe the business necessity and used awkward language in the audit response.  The BALCA decision quoted some of it:

[A]n individual who possesses merely a bachelor’s degree in the above-stated fields will only have a basic theoretical knowledge of the same. Such an individual would not possess the skills, knowledge or ability to perform the highly complex duties without extensive supervision and constant guidance.

In support of its argument, the employer's attorney also wrote strangely that it was:

attaching real time advertisements to show that it is common for employers and the clients to require the same.

PERM Alternative Requirements

"The alternative requirements listed in group item Section H.8 of the ETA Form 9089 are nt substantially equivalent to the primary requirements listed in group items Section H.4 and/or Section H.6. Specifically, the employer's alternative combination of education and experience, a high school diploma and 12 years of experience, is not substantially equivalent to the employer's primary requirements of a Bachelor's degree and 24 months of experience....The formula used by the employer of 1 year of formal education equating to 3 years of work experience is not a formula used or accepted by the U.S. Department of Labor. Per the preamble fo the Federal Register, Volume 69, number 247, dated Monday, december 27, 2004, a Bachelor's degree is equivalent to 2 years of Specific Vocational Preparation. Authority for Denial: Per 20 Code of Federal Regulations 656.17(h)(4)i), alternative experience requirements must be substantially equivalent to the primary requirements of the job opportunity for which certification is sought."

Professional vs. Skilled Worker

For labor certification and preference category purposes, a professional job is one that requires a minimum of a bachelor's degree to perform the job's duties.  A job requiring a skilled worker is one that requires a worker with two or more years of experience.

H-1B Degree - Foreign Degrees, Experience and Equivalence

To qualify for H-1B status, an H-1B worker must have a bachelor's, or higher degree in a field related to the work to be performed and the job must require a minimum of a bachelor's degree for a person to be able to minimally perform the job's duties.

Many foreign nationals have degrees from foreign universities.  USCIS requires a foreign education evaluation by a credentials evaluation service, which issues an opinion about what US degree the foreign one is equivalent to.  Credentials evaluation services are supposed to look at two things to make an evaluation: (1) what was the minimum qualification for admission to the college or university, and (2) how many credits, or unit hours does the university require to issue a degree.  To be equivalent to a US bachelor's degree, the foreign university must require students to have completed a post secondary education (high school) before being eligible for admission to the university program.  And the university must require completion of credit, or unit hours equal to a full time four year US bachelor's degree program.

India has two separate university degree programs, which sometimes causes problems for H-1B cases.  On is a four year bachelor's degree program and the other is a three year one.  Unfortunately, both are called "bachelor's degree" and so it is important to review transcripts for all bachelor's degrees from Indian universities to ensure you have a four year degree and not a three yaer one.

If an H-1B candidate does not have a four year degree, it is possible to use other education and experience to qualify for H-1B status.  A credentials evaluation service can determine whether the applicant's education at several different institutions and programs together is equivalent to a US four year degree.  But a credentials evaluation service may not evaluate whether experience, alone or combined with education, is equivalent to a US four year degree.

An applicant missing one or more years of education for a four year degree may use experience to qualify if the experience is "progressive" and "related."  Progressive experience means experience in positions of increasing complexity and responsibility.  The USCIS rule will allow a beneficiary to qualify with three years of experience for each year of education missing toward the four years required for a US bachelor's degree.

A beneficiary can prove the equivalence of work experience to a degree by one or more of the following: (a) an evaluation by a college official authorized to grant credit for training and/or experience in the specialty; (b) the results of college-level equivalency examinations or special credit programs; or (c) certification or registration from nationally recognized professional associations for the specialty.  8 CFR 214.2 (h)(4)(iii)(D).   Credentials evaluation services are not allowed to evaluate your work experience to prove that work experience is equivalent to a degree.

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